Sam Wardlow, who was holding an opaque bag, inexplicably fled an area of Chicago known for heavy narcotics trafficking after noticing police officers in the area. When officers caught up with him on the street, one stopped him and conducted a protective pat-down search for weapons because in his experience there were usually weapons in the vicinity of narcotics transactions. The officers arrested Wardlow after discovering that he was carrying handgun. In a trial motion to suppress the gun, Wardlow claimed that in order to stop an individual, short of actually arresting the person, police first had to point to "specific reasonable inferences" why the stop was necessary. The Illinois trial court denied the motion, finding that the gun was recovered during a lawful stop and frisk. Wardlow was convicted of unlawful use of a weapon by a felon. In reversing, the Illinois Appellate Court found that the officer did not have reasonable suspicion to make the stop. The Illinois Supreme Court affirmed, determining that sudden flight in a high crime area does not create a reasonable suspicion justifying a stop because flight may simply be an exercise of the right to "go on one's way."

Question

Is a person's sudden and unprovoked flight from identifiable police officers, patrolling a high crime area, sufficiently suspicious to justify the officers' stop of that person?

Yes. In an opinion delivered by Chief Justice William H. Rehnquist, the Court held, 5 to 4, that the police officers did not violate the Fourth Amendment when they stopped Wardlow, because the officer was justified in suspecting that the accused was involved in criminal activity and, therefore, in investigating further. Chief Justice Rehnquist wrote for the majority that, "[n]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion" to justify a stop. The Chief Justice noted that "flight is the consummate act of evasion." Stevens, joined by three other justices, concurred in avoiding a per se rule but dissented from the majority holding.

On September 9th, 1995, when William Wardlow looked at Officer Nolan and took flight, the officer had reason to believe that there was a problem.

He pursued and stopped Wardlow to investigate and discovered a loaded gun in his possession.

The three key factors in this brief statement are flight from a clearly identified police officer without provocation.

These factors provided reasonable suspicion supporting a Terry stop.

At the core of this case...

Justice Kennedy: When you said he had reasonable cause to believe there was a problem, you mean that he had reason to believe that crime was afoot.

Is that the test?

Mr. Devine: Yes, Your Honor.

The reasonable police officer had, under these circumstances, reasonable suspicion to believe that crime was afoot.

Justice Breyer: What crime?

Mr. Devine: Throughout the history of this country, flight has been considered by the courts and by commentators as inherently suspicious.

Justice Breyer: Of what?

Mr. Devine: It is not... it is not required, Your Honor, that the officer have reasonable suspicion of a particular crime.

This was commented on in Anderson and in LaFave.

If the officer has reasonable suspicion to believe that criminal activity may be afoot, as this Court has noted, there may be innocent behavior, but the officer, the reasonable officer, can stop briefly to determine whether his suspicions are justified or not.

Justice Breyer: Does he have to have some rough idea of what kind of crime?

I mean, it wasn't money laundering I take it.

Mr. Devine: No, Your Honor.

And...

Chief Justice Rehnquist: What was it?

Mr. Devine: it is our submission that if the officer has reasonable suspicion that there may be some type of criminal activity... and flight has historically been related to criminal activity, as Mr. Burrill noted in his commentary back in the 1860's, that flight for a burglar, an arsonist, a robber is common, and that in fact if someone committed one of these acts, that it is so natural to flee that if an individual did not, he would be considered mentally deficient.

Justice Scalia: I suppose if a policeman sees somebody with a smoking rifle, he wouldn't exactly know what precise crime was... was probable or possible either.

The man might have killed somebody or he might have shot a bald eagle.

You really wouldn't know which, would you?

Mr. Devine: You would not, Your Honor.

In addition, going back to Terry, the case which is the seminal case on this issue, the activity that the officer noted was as consistent with innocent behavior as with what the officer suspected, namely that the individuals walking around were casing the joint preparing to rob a department store.

Chief Justice Rehnquist: Mr....

There is some reference in the Illinois court opinions to the fact that this was a high crime neighborhood.

Does that bear on your calculus?

Mr. Devine: Mr. Chief Justice, we are proposing that a rule be adopted that is not limited to high crime areas.

We believe that the flight is so inherently suspicious that when you have unprovoked flight from an identified police officer, that wherever it takes place, it provides the reasonable suspicion necessary.

Justice O'Connor: Well, you want some per se rule, it sounds like, rather than what we have normally done on a Terry stop, which is inquire whether there is reasonable suspicion based on the totality of the circumstances.

You reject that as the test?

Mr. Devine: No, Your Honor.

This, in fact, comports with totality of the circumstances.

But what we do say is when these three factors are involved, they are sufficiently important and sufficiently focused that they provide and should provide the officer with a reasonable suspicion.

Justice O'Connor: But in... in... in this case, there may well be special circumstances that would enter the mix.

The officer was going to a building that the officers thought was the location for a lot of drug trafficking.

And presumably we have circumstances here where the... where the person who ran had seen that it was a police officer following that person, and so that's different from a flight where the person doesn't even know there's a police officer...

Mr. Devine: Well, no, Your Honor, there are three...

Justice Kennedy: there.

Mr. Devine: There are three factors that we propose be part of the rule: one, the flight; second, that it's from a clearly identifiable police officer; and thirdly, that it's without provocation

We understand that just flight in a vacuum doesn't give us the reason to say that there's reasonable suspicion, but when the three factors are combined, we believe that that is... that is the case.

Justice Breyer: Mr....

Justice Stevens: Would be the same rule if, say, the... the person who's stopped was wearing jogging shoes and sweat pants and a sweatshirt and carrying a basketball?

Mr. Devine: Your Honor, it would fit in, in that the reasonable police officer, the standard that the Court uses, would have to conclude that the flight was in response to his presence and without provocation.

So, whatever the garb of the individual, if he looks at the police officer, and then takes off, that creates the reasonable suspicion.

Justice Stevens: What... what if he had seen him running, then he stopped for a while, then he saw the police officer, and he started running again?

That would still... that would still apply, wouldn't it?

Mr. Devine: No, Your Honor.

I would say in that case if the individual is running in the direction, glances at the police officer, and continues on.

Chief Justice Rehnquist: No.

Justice Stevens: He stops.

He had stopped and he was catching his breath and then he looked up and saw the police officer and took off.

Mr. Devine: I would say that that's ambiguous behavior that would fall within the totality of circumstances rather than within the rule we're proposing, Your Honor.

Justice Souter: Mr. Devine, the... let me tell you the difficulty that I have with your proposal.

You... you mentioned a moment ago, quite correctly, that under any reasonable suspicion rule, some innocent people are going to be stopped or are liable to be stopped under that rule, and we accept that.

That's... Terry... Terry starts on that premise.

The... the trouble is how high is the risk that... that innocents are going to be stopped or... or how many innocents are going to be stopped in relation to the... to the whole?

That... that seems to me the tough question.

And the reason it's a tough question here... I'd like you to comment on it... is that it seems to me that if we accept your premises, where in the high crime area a clearly identified police officer arrives... and in fact, in this case arrived as... I guess in a convoy of... of four cars... it seems to me that anyone in his right mind is going to want to get out of the way fast.

If I were standing on that corner, I don't know whether I would run or duck into a... an alleyway or what, but I would want to get out of the way.

And therefore, it seems to me, on your premise, there are going to be a substantial number of quite innocent people who, recognizing the spot they are in, are going to go on and get just as far away from the police and any shoot-out or whatnot that may occur as they possibly can.

And it raises the specter of simply too many innocent people getting picked up on your rule.

What do you say to that?

Mr. Devine: Well, Your Honor, I would again note that flight, going back to the time of the Framers, has been considered suspicious behavior, but looking at the balancing this Court does in analyzing the reasonableness under the Fourth Amendment, we look at the governmental interest.

Here the governmental interest is a police officer who's on the scene, sees an individual look at him, and take flight.

The police officer does not have the ability to further investigate.

The police officer does not have any ability to find out what is going on.

Justice Souter: Yes, but he may have the ability to note a number of other facts besides the one that you mentioned, and some of them have come up on the bench here.

What if... what if the individual in fact ducks into a... runs toward a building which is a known crack house?

I mean, there... there are lots of little details that come into a totality of the circumstances test that might make, for example, the stop in this case a perfectly good Terry stop, but it gives one pause when you ask us, number one, to depart from totality, number two, to come up with a bright line rule in which there's at least a substantial risk of a lot of innocent people being... being caught.

Mr. Devine: Your Honor, I... I would submit an alternative thought, namely that... that flight is such inherently aberrant behavior that it does create the reasonable suspicion...

Justice Souter: Yes, but we don't have a rule that says anytime anyone flees from the police, there is... there is sufficient suspicion for a Terry stop.

We don't accept that rule.

And in fact, that... that's even narrower than... than you're arguing for in this case.

Mr. Devine: Well, this Court has commented that when an individual flees from the police, common sense might tell us...

Justice Scalia: Oh, it's darned good evidence.

Justice Souter: No question.

The writer of proverbs was right, but we've never accepted that as a sufficient test in and of itself.

Justice Scalia: Well, not yet we haven't.

Have you accepted...

Unidentified Justice: [Laughter]

Mr. Devine: I know some of the Justices may have.

Justice Scalia: Have... have you accepted the premise that... that normally when the police show up, all of the neighbors run away?

I... my experience has been just the opposite, that the police have to keep the crowd back.

Mr. Devine: Well, Your Honor, I certainly...

Justice Scalia: The curiosity tends to cause people to hang around as soon they see a couple... gee, what's going on here?

Mr. Devine: I...

Justice Scalia: I certainly...

Mr. Devine: Pardon me, Your Honor.

Certainly in... in my experience, Your Honor, flight from the arrival of police officers, as they go about the duty... about their duties, is not a common experience.

Is there any evidence, apart from intuition, that people who have something to hide run?

Justice Souter asked the question about how many innocent people are in jeopardy.

Is there any empirical evidence at all to back up this intuition that people don't run unless they have something to hide?

Mr. Devine: Well, Your Honor, we have the entire history of this country with the commentators and the cases that have...

Justice Scalia: You have this case for starters.

Right?

Mr. Devine: Well, absolutely, Your Honor.

You have after the stop, a weapon with five live rounds in it was found on Mr. Wardlow.

Justice Ginsburg: Well, we have this case, but how many on the other side where this practice is followed?

How many innocent people get stopped because they sped away?

Mr. Devine: Well, again, Your Honor, based on my... my view of it as a prosecutor for a number of years, I don't believe it occurs that often.

But what we are talking about...

Justice Ginsburg: But we don't have any empirical studies of this, do we?

Mr. Devine: We don't have any to submit, Your Honor.

We have the history of this country, how flight has been looked at over the course of the history of this country.

Justice Ginsburg: And that... that's... some of those cases, at least, involve flight after an accusation, after a charge.

Mr. Devine: Some did, Your Honor, but Burrill in his commentaries, referring to the common law, clearly referred to flight from the scene and how natural it was for criminals to flee.

In addition, Wigmore, that was cited by... who was cited by respondent, also talks as the flight being the evidential matter that we look at.

Justice Scalia: Mr. Devine, do we have any empirical studies about... empirical studies about how often, when there's been somebody killed and somebody nearby has blood on his hands, that person is likely to have been involved in the killing?

Are there any empirical studies on that?

Mr. Devine: No, I'm not aware of any empirical studies, Your Honor.

Justice Kennedy: Do you think that would justify a Terry stop?

Justice Breyer: What do you... what do you say about the argument that... well, there are some neighborhoods, high crime neighborhoods in particular, where people are afraid of the police?

Maybe the police just stop people randomly and search them, and there can be a racial element involved, a white policeman in a black neighborhood.

Say, that in that neighborhood, people are frightened of the police and they run away.

They just don't want to get involved.

Mr. Devine: Well, Your Honor, I would first note that in many of those same neighborhoods, the victims are the ones who are concerned about crime being solved.

Mr. Devine: My response is that... that since Terry, when the Court discussed that issue, this Court has said that under the Fourth Amendment we apply a colorblind test.

We look at the balancing outside of those issues, and if those issues are there, application of sanctions under the Fourth Amendment isn't going to resolve them.

They should be handled, as this Court has said, as recently as Wren, either by equal protection claims or section 1983 claims or administrative charges within the particular police department.

I would submit, Your Honor, that if we start to classify when we can do a Fourth Amendment stop, based on Terry, or arrest based on probable cause, considering what the race of the police officer is, the race of the individual that is involved, the Fourth Amendment will be unworkable and will prevent the police officers from doing the job that we want them to do.

That's why we believe a bright line rule is appropriate here.

Justice Kennedy: So, in your...

Chief Justice Rehnquist: Mr. Devine, your... your question presented is whether a person's sudden and... in petition for certiorari, whether a person's sudden and unprovoked flight from a clearly identifiable police officer who is patrolling a high crime area is sufficiently suspicious to justify a temporary investigatory stop pursuant to Terry against Ohio.

That doesn't sound to me so much like a request for a bright line rule, as saying do these circumstances come... satisfy the Terry case, which maybe it's another way of saying the same thing.

But I... I don't read that necessarily as saying that you believe that every time these factors coalesce, there will be a cause for a Terry stop.

Mr. Devine: Well, Your Honor, we do submit that... and the high crime area is in the cert petition, but we submit that the three factors that we've identified, flight without provocation from a clearly identified police officer... you reach a point where you have reasonable suspicion with those factors.

And we believe it is important that this Court speak clearly on this because a police officer does have to make an instantaneous decision...

Justice Stevens: May I ask on your bright line rule?

Would it apply to someone driving in car who sees an officer in the rear window and then decides to turn off because he's not sure he's going to be stopped?

Mr. Devine: If it... if it is not identified as flight from the standpoint of the reasonable police officer...

Justice Stevens: No, it is.

He... that's exactly the... he just doesn't want to take the chance on being stopped, so he tries to get away, but without... without evading the speed limit.

Mr. Devine: Well, Your Honor, we would... we have made a point of differing... distinguishing avoidance from flight.

Mr. Devine: If the police officer, for example, came up and threatened an individual and they ran away, that would not be flight that would fall within the definition.

Justice Kennedy: Threatened him with what?

I'm going to beat you up or...

Mr. Devine: With a beating, with harassing of some nature.

If there is evidence of that, that the police officer says that, or if the police officer has made some other comment to the individual that could be interpreted as threatening him, that would be provocation.

We... we have said that unprovoked flight is where a reasonable police officer can say it's the presence of the police officer that has caused the individual to flee.

Justice Kennedy: Suppose the police officer and his colleagues go to the area and swoop down in order to cause some people to flee and then stop them.

Is that unprovoked in your...

Mr. Devine: If...

Justice Kennedy: definition?

Mr. Devine: If a police officer arrives on the scene to see who will... who will run and if someone does run at the presence of a police officer, that would come within the scope of what we're talking about.

But I'd submit, Your Honor...

Justice Kennedy: But which way do you come out?

Mr. Devine: I would say that...

Justice Kennedy: That's not provoked?

Mr. Devine: That's not provoked flight.

It has to be with... so, the motivation of a particular police officer will not... as this Court has said on many occasions, we'll look at the reasonable police officer, what he observes.

And the point is that the individual who is... who is fleeing creates the suspicion by flying from the presence of the police officer.

Justice Scalia: Indeed, it might be good patrolling practices I suppose and stop innocent citizens from being subjected to Terry stops more often than they otherwise would if a police officer, seeing... or a couple of police officers seeing a... some suspicious individual said, let's walk over towards them and... and... you know, I'm not sure it's suspicious enough for a Terry stop now, but let's see if they run.

Mr. Devine: Well, the police...

Justice Scalia: And as they approach, they do run and the police officers then stop them.

That would seem to me pretty good police practice.

Wouldn't it seem so to you?

Mr. Devine: Yes, Your Honor.

And as this Court have noted, the police have the right to walk up to individuals, to question.

The individual may not... may not respond...

Chief Justice Rehnquist: And the individual has a right to walk away, which you concede, I take it.

Mr. Devine: Oh, that's right, Your Honor.

Yes, he does.

But... but it's the flight from the presence of the police officer that creates the issue.

In Hodari...

Justice O'Connor: And just walking fast won't do it.

Justice Breyer: Is that your position?

Mr. Devine: It would have to be determined to be flight, Your Honor.

And that walking away fast does...

Justice Scalia: Power walking.

What about power walking?

Unidentified Justice: [Laughter]

Mr. Devine: My power walking would...

Justice Scalia: From an elderly... from an elderly and overweight police officer.

Unidentified Justice: [Laughter]

Mr. Devine: Well, Your Honor, I would...

Justice Stevens: I am still troubled or concerned.

I'm just not sure I understand this provocation that Justice Kennedy is asking about.

We had a case last year, I know you're familiar with, on the loitering ordinance.

Mr. Devine: Yes.

Justice Stevens: Supposing as a remedy of that, instead of doing the procedure authorized by that ordinance, the police adopted a practice, whenever they saw a group of young men standing in the street corner to come with a siren on and see how many run.

Would that... would that be provocation or would that be no provocation?

Mr. Devine: If it's the presence of the police officers, Your Honor, and the flight from that, then we would say that's not provocation.

Justice Stevens: If his presence is accompanied by turning on the bright light and the siren.

Mr. Devine: No, Your Honor, because that signals the police officers are there to perform a function.

It does not give an individual the basis for saying I have to just get away from this situation.

It creates the reasonable suspicion.

And the reason that we suggest that a rule, a clearly stated rule, is appropriate here, there are circumstances when this Court will do that, as you did in Maryland v. Wilson, saying passengers can be taken out of a car.

And in fact, in Hodari, we believe this Court properly clearly talked about seizure requiring a physical restraint where the subject refuses to yield.

Justice Scalia: Mr. Devine, what happens to these people when they run?

Are they arrested?

Mr. Devine: No, Your Honor.

That's... that's the other side of this.

The intrusion on the liberty interests compared to the need to do good police work is minimal.

An individual can be stopped for a few brief moments for some questions, limited in scope related to the suspicion that the police officer originally had.

So, the intrusion on the liberty of the individual is...

Justice Stevens: No, but I'm sure that a running... a fleeing person could be tackled by the police, for example, couldn't he?

If the person did not yield to authority, this Court has said that physical control is necessary.

Thank you, Your Honor.

Argument of Malcolm L. Stewart

Chief Justice Rehnquist: Thank you, Mr. Devine.

Mr. Stewart, we'll hear from you.

Mr. Stewart: Mr. Chief Justice, and may it please the Court:

It's certainly true, as respondent and his amici point out, that individuals may, on some occasions, have innocent motives for fleeing the police.

But the purpose of a Terry stop is not to apprehend individuals who are known to be guilty of criminal offenses; rather, it's to provide a means by which police may resolve ambiguities in situations where they have reasonable... reason to suspect criminal activity, but lack probable cause to make an arrest.

And in our view, flight from identifiable police officers will ordinarily correlate sufficiently with likely involvement in criminal activity.

Justice Souter: Well, Mr. Stewart...

Justice O'Connor: What do you do...

do you propose some per se rule, as Mr. Devine was arguing, or are you advising us to stick with the Terry reasonable suspicion/ totality of the circumstances?

Mr. Stewart: I think we... we believe you should look at the totality of the circumstances.

I think in the end our position is not significantly different in... in substance from the petitioner's, although we may use different terminology.

Our view is that ordinarily when an individual flees at the sight of an identifiable police officer, under circumstances in which the officer reasonably infers that the individual is running because of the officer's presence, rather than for some other reason, ordinarily that would raise a sufficient inference of guilt to justify a Terry stop.

The question of provocation has...

Justice O'Connor: Are you saying that there's... is there a right of an individual to go their own way even though there's a police officer known to be on the scene?

Can you walk away rapidly?

Can you just not want to have anything to do with them?

Mr. Stewart: I think there... there is a... there is no right to avoid police observation or police contact, that is the Court... in public areas.

Public areas are, by their nature, subject to police surveillance and this Court has held that even without particularized suspicion, police may approach an individual on the street and request voluntary cooperation.

Now, there is a liberty interest in freedom of movement in public areas, and the police may not arbitrarily restrain the individual in that exercise of liberty.

And I think what the Court has referred to as an individual's right to go on his way is really simply another way of stating that without particularized suspicion, the police can't require the individual to answer their questions.

They can't even require the individual to stand still long enough to hear the questions.

Justice Souter: But there... what do you make of the slippery slope argument that... that takes the... the situation one step further?

It was made in at least one of the amicus briefs.

As you say, the police certainly can properly ask a question of anybody on the street, and most people will answer the question or at least not behave rudely.

If the petitioner's petition... position is accepted, what do we do or what rule would we have in the case in which the individual who was accosted by the police on the street and asked a question, instead of answering it tells the officer to go to blazes or perhaps something stronger than that?

Does that... is that going to be the equivalent of flight, i.e., deviant response, and... and justify a Terry stop?

Mr. Stewart: No.

I think... I think flight is really different fundamentally in at least three respects from less extreme means of expressing a desire to avoid...

Justice Souter: Let's assume the language is extreme.

Mr. Stewart: Okay.

One of the... one of the things that is distinctive about flight is that in many cases it is likely to connote a panicked reaction, an emotional reaction to the police presence.

And... and panic is in our view more likely to signal consciousness of guilt than is an... an emphatic, salty expression of disdain for the police.

The second... the second, and perhaps the... the most fundamental difference is that flight expresses the desire not simply to refuse cooperation with the police, but to be free from any form of police observation or scrutiny.

And that's really one of the reasons that we think the purposes of the Terry stop are particularly implicated in this situation; that is, the fundamental purpose of the Terry stop is to allow the police briefly to freeze the status quo while they undertake further inquiry to determine whether there...

Justice Breyer: If you're going to frisk the person, doesn't the policeman have to have at least some notion of what kind of a crime this person might have committed.

Justice Harlan said in Terry that to frisk him, you'd have to have... that the reason for the stop is an articulable suspicion of a crime of violence.

So, if we have no idea what kind of crime is at stake... he just runs... what's the ground for frisking him?

Mr. Stewart: Well, I think the ground for frisking him is, first, the belief that he may be... the ground for frisking him is to protect the officer's safety while the stop is taking place.

Justice Breyer: You disagree with Justice Harlan's articulation of the standard.

Mr. Stewart: Well, I think what Justice Harlan was saying... I don't know that Justice Harlan had in mind the situation in which police had an articulable basis for suspecting criminal activity but no particular crime in mind.

Chief Justice Rehnquist: Well, that... that was not the view of the majority in Terry.

Justice Harlan wrote separately, did he not?

Mr. Stewart: That... that's correct.

And in terms of the principles, the rationale underlying the Court's Terry stop jurisprudence, I don't think there is any basis for saying that police have to be concerned with a particular crime.

The purpose of the Terry stop is to resolve ambiguities, and in United States v. Sokolow, for example, the... the police... the law enforcement agents, roughly speaking, had drug crimes in mind, but there was no particular form of narcotics that they suspected.

There was no particular unlawful transaction.

So, to return to your question, Justice Souter, part of the reason that we think flight is extraordinary again is that it denotes a desire not simply to refuse cooperation, but to avoid all forms of police scrutiny.

And for that reason, in our view, it's a particularly appropriate occasion for a Terry stop.

Justice Kennedy: Your... your brief mentioned the fact it was a high crime area, and that seems to have dropped out of your argument really.

And I suppose if the police see somebody running in a very elegant neighborhood near the country club, it's just as suspicious.

Mr. Stewart: If the... if the police see somebody running in the elegant neighborhood and the running appears to have been prompted by... by their...

Justice Kennedy: It's prompted by the police.

Mr. Stewart: Yes, I think that would be suspicious, and we would say it is sufficient to justify a Terry stop.

Justice Scalia: I would think it would be more suspicious.

I mean, somebody may be running away in a high crime neighborhood because he doesn't believe that the person is a policeman, whereas in a low crime neighborhood, you know, surrounded by honest people, this must be a policeman.

Mr. Stewart: Typically... you could make the argument either way.

Typically the courts have regarded presence in a high crime neighborhood as... as reinforcing rather than undermining suspicion, but I think...

I think our basic point is if you have flight from an identifiable police officer in apparent response to the officer's arrival and nothing else on either side of the scale, that should be sufficient to justify a Terry stop.

Here we think that the... the fact that this occurred in a high crime neighborhood at least somewhat reinforces the inference of suspicion.

Justice Scalia: There could... there could be a lot of elses, though, besides mere provocation, couldn't there?

I mean, there... there were instances a few years ago in the Washington area in which some man was... was posing as a policeman in a... in a police car with a... put a red light up on top of the car and stopped women and robbed and raped them.

Now, what if something like that has been going on and a woman is driving along in a car and there is a real policeman, plain clothes, he puts a red light up and she takes off fast?

Now, would you call that provocation?

I would hardly call it provocation, but there would be good reason for her to take off.

Mr. Stewart: I think certainly if the individual could establish that within a particular community it had become the norm for people to flee from the sight of an apparent police officer for whatever reason, if that had become typical behavior within the community...

Chief Justice Rehnquist: Well, Mr. Stewart, you know, we don't have a lot of empirical testimony in these cases as to whether something had become the norm in a community.

You have to be a little more categorical than that.

Mr. Stewart: And I think certainly the general rule would be absent... we would think that the norm in most and perhaps all communities is the innocent people don't typically flee upon the arrival of the police, but we would say if an extraordinary case arose in which a person could actually establish that this had become accepted, typical behavior...

Chief Justice Rehnquist: Well, doesn't that bring it back to the general Terry test again?

You know, this may be a presumptive thing, but it isn't going to be categorically true in all cases that these three factors will justify the Terry stop.

Mr. Stewart: I think that's correct.

I think the individual always will have the opportunity to show that other contextual factors made it unreasonable for the police officer to infer guilt from the fact of... of flight.

Justice Scalia: And the test is not whether the individual was reasonable in fly... in fleeing, but whether the policeman should have realized that the... that the fleeing does not necessarily connote guilt.

Mr. Stewart: That's correct.

If... if Mr. Wardlow, for instance, had not been engaged in any illegal activity and if he... presumably the suppression hearing would... would never have arisen, but if it had been the case that he fled because he was sincerely afraid of the officer and felt no consciousness of guilt, there would be no Fourth Amendment violation.

The officer would have behaved reasonably given the information in front of him even though it would have... thank you, Your Honor.

Argument of James B. Koch

Chief Justice Rehnquist: Thank you, Mr. Stewart.

Mr. Koch, we'll hear from you.

Mr. Koch: Mr. Chief Justice, and may it please the Court:

One simple rule will not cover every situation, and that's why, in determining reasonable suspicion, this Court has consistently rejected bright line rules, emphasizing a case-by-case, fact-specific nature on a reasonable inquiry.

In response to petitioner's argument with... with the three tests, the reason flight alone or flight from a police officer without provocation cannot in every situation constitute a per se rule, is if someone doesn't want to speak with the police, sees them coming, and walks, skips, jumps, gets on his bike, or get in a car, he would be subjected under this per se rule to a Terry stop, and for no other reason than he didn't want to speak with the police officers.

That's why the Illinois Supreme Court, using a case-by-case analysis found it untenable in this situation, that flight in every situation was reasonably suspicious.

Justice Scalia: Well, that goes too far.

I mean, it isn't walk, skip, ride a bike, or whatever.

It has to be departing... as I understand the test proposed, departing in such a fashion as to make it clear that he's trying to escape the police, a panicked departure...

Mr. Koch: Well...

Justice Scalia: to prevent the police from catching up with him, in such manner as to... as to prevent the police from catching up with him.

Mr. Koch: That calls into question then or calls into certainly consideration the notion of what is flight, and that is as descriptive term as applied by the police.

Justice Breyer: Sure.

Mr. Koch: If my client was elderly, saw the police and turned on his walker to go away, that might be slow flight.

He may be simply trying to avoid the police and not trying to escape them.

Justice Scalia: That's where the totality of the circumstances comes in.

I mean, none of these things can be... can be applied without some judgment in the particular context, which depends upon the totality of the circumstances.

Mr. Koch: Well, I would agree.

And in the totality of circumstances in this case, what the Illinois Supreme Court said is the officer merely failed to articulate what is it about that non-criminal activity, the flight, the avoidant behavior, that was suspicious and directed the officer's attention.

Chief Justice Rehnquist: Well, but you know, I... certainly there was an argument that this sort of panicked flight is enough.

What more should the officer have to say?

Mr. Koch: The officer should have to say or articulate what is it about the flight that caused him to focus on this particular person at that time.

Was there a scream?

Was he running from a store?

Were there...

Chief Justice Rehnquist: Well, but you know, you're saying more should be required, but there's certainly an argument on the other side that a panicked flight is enough.

Mr. Koch: There is an argument on the other side that panicked flight is enough in a case-by-case basis.

They're asking for a per se rule that every time someone sees...

Chief Justice Rehnquist: Well, but I... I think the argument developed on... on the petitioner's case is that they think these circumstances generally come within a Terry stop rule, not that every single time you have a flight, as Justice Scalia's questions indicate, you're... you're going to have a basis for a Terry stop.

Mr. Koch: On every... every time somebody flees then from the police without provocation, if I understand the question.

Chief Justice Rehnquist: Yes.

Mr. Koch: And... and I would say that it sounds like or smacks of a per se test, that every time somebody seeks to avoid the police at any rate or any speed and it calls...

Chief Justice Rehnquist: Well, no, it's not at any rate or any speed.

Surely, you realize that just from listening to the argument.

It's a panicked flight.

Mr. Koch: Well, if I can apply it to this case, and Justice Souter's comment, in this particular neighborhood... though we would disagree it is a high crime area, the Illinois Supreme Court said it was on a de novo review... but it would make perfect sense for... if you see four police cars and eight police officers converging on a scene at one time, that one person might duck behind a car.

The Solicitor General would call that aberrant behavior.

Others might flee so that they... they aren't subjected to gunfire, maybe being called as a witness, being interviewed.

And again, in this case, it makes perfect sense because my client left the scene, went around an alley and came right over to the police.

He came back to them.

So, it might be that everybody in the neighborhood would... would accordingly react.

So, it wasn't panicked.

It was a reasoned judgment to avoid some confrontation between the police and whatever it was that called four cars and eight police officers to the scene.

Justice Scalia: I'm not really sympathetic to... to those who... who run away because they don't want to be called as a witness.

I mean, you think that's... out of sympathy for that class of people, we should refuse to adopt this rule?

Mr. Koch: No, I don't, Your Honor, but... and I don't know that you would be sympathetic either to those who don't want to be subject to misidentification or harassment, those who don't want to be intimidated in the area.

There may be people who... who don't want to be called as a witness.

There may be people who are simply intimidated by the entire nature of seeing four cars and eight police officers converge on a scene.

Justice Scalia: There may indeed.

I mean, nobody contends that every time a police officer conducts a Terry stop, it's a guilty person.

The innocent are going to be caught up in... in the necessary procedure of... of assuring the safety of the streets.

Mr. Koch: Well, then there should be, as I understand Terry, some articulable basis for stopping that person who's left.

Something...

Justice Scalia: You really don't think it's an articulable basis that a police officer is patrolling a beat.

There's somebody on the other side.

He does a double take.

He sees... he looks again and starts running in panic.

That... that does not arouse any suspicion?

Mr. Koch: That may arouse suspicion in context.

Was he running from a scream?

Was he running from a store?

Justice Scalia: Fine.

Mr. Koch: Flight in and of itself...

Justice Scalia: No.

He's running from the policeman.

He is clearly running from the policeman.

You seriously contend that that does not arouse any reasonable suspicion.

Mr. Koch: I would submit it is suspicious and it's a hunch that something is amiss.

Justice Scalia: Right, right.

Mr. Koch: But without some articulable suspicion of what...

Justice Scalia: It's unprovoked.

He's fleeing in panic from a policeman.

Now, there may be other circumstances that... that could come in, but absent those other circumstances, which I don't see here... what are the other circumstances here that... that deprive that... that flight of its... of its normal... what I would consider its... its normal purport?

Mr. Koch: Well, time, context, other people on the street.

If it was... if my client was running and it was 2:00 in the morning, if it was a cold winter's day, if he was running from some... the police officer, heard a scream, were they responding in the neighborhood to some response?

Justice Scalia: Oh, it could have worse.

It could have been more suspicious.

I don't deny that, but what makes the flight less suspicious than normal flight in this case?

Mr. Koch: That there is no context... there's no articulable basis by the police of what it is that called my attention to him running.

I saw him running.

Yes, that's suspicious.

I want to check it out.

I could surveill him.

I could call the... the station and...

Justice Scalia: Well, they didn't just see him running.

They... they saw him running from the police.

I mean, this was not a jogger.

Mr. Koch: Well, they saw him running from... they looked... my client looked in their direction...

You are not, as I understand it, arguing here that it would have been error for the Illinois courts to say under Terry that on all of the circumstances of this case, the Terry stop was valid.

As I understand it, what you're arguing is that it is not a proper basis to reverse the Supreme Court of Illinois by adopting a per se rule that flight in response to the police in high crime is per se enough.

Mr. Koch: That's correct, Justice Souter.

Justice Breyer: Is... that's your point.

Justice Souter: So, whether... whether they... whether in fact this was or was not a good Terry stop is not really the issue in this case, as I understand it.

And I take it you agree.

Mr. Koch: And I agree, and I would add that what the...

Justice Scalia: You are not really.

You are not really agreeing because you are not really saying that... in response to my questions, you... you indicated that you have no factors that you can bring forward on the other side.

I mean, we don't have to have a per se rule in order to say unless there are some factors which otherwise explain it to the reasonable police officer, unprovoked flight, upon seeing a police officer, is enough to satisfy Terry.

That's not a per se rule.

It's just that there are no factors on the other side.

And you don't assert there are any in this case, or at least you haven't told me any.

Mr. Koch: Justice Scalia, what the Illinois Supreme Court said was what was untenable was there were no articulable facts in the record from which they would be willing to tilt in this situation individual's freedoms in favor... whether it's per se or totality, in favor of the State.

Justice Scalia: Which means that they are unwilling to consider flight from a police officer suspicious, and that's really what all of this debate is about.

Mr. Koch: It's my...

Justice Ginsburg: I thought, Mr. Koch, that that was your point.

I thought that you really crossed swords on that, that your position was flight in and of itself from a police officer is not enough, and Mr. Devine's position is, yes, it is enough.

So, he is arguing for a bright line rule and he was very candid in saying when you have these three factors, that's it.

You don't look to anything else.

I thought your position was flight from a police officer is not enough.

You must have corroborating circumstances.

Now, in answer to Justice Scalia, you seem to be backing off from that, but is that your position?

Mr. Koch: No.

It is our position that flight in and of itself is not sufficient to stop an individual on the street, that there has to be some corroborating circumstances that are articulated that criminal activity is afoot.

Justice Ginsburg: You mentioned scream and running from a store.

What else would be corroborating circumstances?

Mr. Koch: There may be a call in the neighborhood that they're responding to.

It may be, for example, under a... perhaps a Reid v. Georgia analysis that nobody else fled and he's the only person, that they're responding to some activity that they see someone running out of a store.

There may be a whole myriad.

Really, the Illinois Supreme Court decision is really... it's democracy promoting in the sense that there's an endless variety of circumstances, coupled with flight.

Chief Justice Rehnquist: Mr.... Mr. Koch, the question presented, whether a person's sudden and unprovoked flight from a clearly identifiable police officer, who is patrolling a high crime... is sufficiently suspicious to justify a temporary investigating stop under Terry.

Now, you didn't object to that.

You didn't say the Court couldn't reach that question in your brief in opposition, did you?

Mr. Koch: No.

Chief Justice Rehnquist: So, I understood your answer to Justice Souter's question was that your position was that really the Supreme Court of Illinois could have been wrong in this case, but that the Supreme Court of Illinois could have decided this case otherwise.

It could have decided the other way, but that your position was we simply should give discretion to that... them in reviewing it.

Now, where do you take that position in your brief?

Mr. Koch: That to give discretion to the Illinois Supreme Court decision in review?

Chief Justice Rehnquist: Well, as I understood your answer to Justice Souter's question, it was that you're not saying that the Supreme Court of Illinois couldn't have come out the other way in this case.

In effect, it could have come out either way and we shouldn't review it.

Now, where do you...

Mr. Koch: It's my... our position is that the Illinois Supreme Court correctly said that flight in and of itself will never be enough absent corroborating circumstances, and they will not adopt a per se test...

Chief Justice Rehnquist: And it would have been wrong in the... your position is that the Supreme Court of Illinois would have been wrong to come out otherwise.

Justice Souter: What you came here to argue is that the per se rule is a wrong reason for reversing the Supreme Court of Illinois.

Right?

Mr. Koch: That's...

Justice Breyer: Okay.

Mr. Koch: That's correct.

Justice Stevens: May I ask you a question about the facts?

The... the intermediate court and the Illinois appellate court had a more thorough discussion of the facts I think than the supreme court did.

And there's a sentence in the opinion that is... the record here is simply too vague to support the inference that the defendant was in a location with a high incidence of narcotic trafficking or, for that matter, that defendant's flight was related to his expectation of police focus on him.

Now, have you conceded that this... that your client fled because he saw the police?

Mr. Koch: No, I have not, Your Honor.

The Illinois appellate court decision, in reviewing the record, notes that there was one sentence that says he fled because there's high... there's high narcotics traffic in the area and... and found the record too vague to support the high crime area.

And they also pointed out that there was no... nothing articulated by Officer Nolan as to such things as who else was on the street.

Were there... in response to...

Justice Scalia: If you haven't conceded it, you should have objected to the question presented.

Chief Justice Rehnquist: You didn't say that.

The question presented is whether a person's sudden and unprovoked flight from a clearly identifiable police officer, and you didn't question that question in your brief in opposition.

Mr. Koch: That's correct.

Justice Scalia: Gee, I didn't really think we were going to get into the facts of this case as to whether, indeed, it was an unprovoked flight.

I thought that was a given and you...

Mr. Koch: There's nothing in the... in either the Illinois appellate court or the record that says it's provoked or unprovoked.

Justice Breyer: Well, that may be.

Justice Scalia: You should have raised that point earlier.

As far as I'm concerned, what... what we have before us is... is that question and... and we assume an unprovoked flight.

Mr. Koch: Even if it was unprovoked flight, and... and that's a given, it's unprovoked without corroborating circumstances that his flight was related to some criminal activity.

And the per se rule that the Illinois Supreme Court refused to adopt was just that: Absent some corroborating circumstance, flight alone is insufficient

Were it otherwise, what is left to fill the void is unparticularized discretion, unsubstantiated hunches, and non-individualized suspicion.

It's my understanding... and I think the Illinois Supreme Court was very clear... was that there was nothing here by the police officer to articulate what is it about the flight that caused it to be suspicious.

Justice Scalia: Well, I thought they acknowledged that there are other circumstances which would show... which would show that... that there was reason for the flight.

And if... if the policeman was aware of the reason for the flight, then they... they wouldn't think there was basis for a Terry stop.

Mr. Koch: It's my understanding that they're saying that flight from a police officer without provocation is always in every circumstance grounds for a Terry stop.

Justice Breyer: If you win on that... if you win on that, what about running away under these circumstances?

Suppose it also was from a 20-foot area in front of a building that the police knew was commonly used for narcotics sales that often had many people, including lookouts, customers, and others.

Mr. Koch: And...

Justice Breyer: He's right in front of the storefront which everyone knows is the storefront where on a daily basis they sell narcotics.

And you go to that 20-foot square storefront, and there's somebody standing right in front of it and people run away.

And he looks at the policeman, runs away.

What about that?

Mr. Koch: And I would submit that if Officer Nolan in that situation had testified... in the record, it does say, Justice Breyer, I went to this area with the four cars...

Justice Breyer: It doesn't... it seems... maybe it's a little ambiguous, but it seems to say 4035 Roosevelt Avenue.

Mr. Koch: That's the... that's where he sees my client.

But what he says is because of number of people and customers and perhaps lookouts, and in the situation you described, if Officer Nolan said he fled and I... I think he was acting as a lookout or I think he was coming from one of the facts in Minnesota v. Dickerson...

Justice Breyer: I know, but what about my... my hypothetical rather than yours?

Mr. Koch: I think in your hypothetical, had that been articulated, that may very well constitute reasonable suspicion.

That wasn't articulated in this case.

Nothing was articulated.

Thank you.

Justice Ginsburg: Would you take the same position if instead of running off, he jumped into his car on the... it was parked curbside... and sped away?

Mr. Koch: I think I would take the same position that we have the right to eschew interactions with the... with law enforcement or the government.

If a police officer were to walk over to you, you can... you can continue walking, walk across the street, get on your bike.

And certainly the manner in which you exercise your Fourth Amendment rights shouldn't be bootstrapped into a violation of them and cause a Terry stop any more than perhaps if Mr. Bostick had said... had been asked, I'd like to search your luggage, and he says, I don't want to.

Can that be bootstrapped into a search of his luggage?

And the answer has to be no.

So, there's a very important constitutional point here, that my client can come and go as he pleases absent some objective criteria that he's engaged in criminal behavior.

So, yes, you can get on your bike, get in the car, walk away, absent something articulated by the police that causes him to be stopped, which is absent from this record.

Justice Kennedy: Suppose in the luggage case, in response to the police request, the man takes his luggage and starts to run.

Mr. Koch: In a... that may be with other factors, it may be there's some.

But I would submit that flight alone...

Justice Kennedy: No.

Just the... just the simple flight.

Mr. Koch: I would submit that that is not grounds for a Terry stop.

If the police officer says, I'd like to search your luggage, he takes his bag and... and...

Justice Kennedy: On the grounds that it is more likely than not that he is innocent of any activity, of any criminal activity?

Mr. Koch: On the grounds that the manner in which you exercise your rights shouldn't constitute a violation of it.